S. Acharya, J.
1. This revision is directed against the appellate Judgment passed by the Sessions JudgeCuttack in Criminal Appeal No. 314 of 1965, upholding the conviction and sentence of the petitioner under Section 92 of the Factories Act. passed by a magistrate first classcuttack.
2. It is alleged by the prosecution that P. W. 1, an Inspector of Factories,inspected a factory named Kalinga Cables and Metal Cast Company at B 12, Industrial Estate Khapuria Cuttack on 6 Jane 1963 once at 9 am. and again at 7 p.m. and found eleven workers engaged in the said concern which was running with power. Considering the said concern to be a factory as defined under Section 2(m) of the Factories Act, 1948 the petitioner, as the alleged occupier of the said factory was prosecuted under Section 92 of the said Act for violation of certain provisions of the said Act.
3. The defence all through asserted that there never existed a factory named Kalinga Cables and Metal Cast Company at Khapuria and that Kalinga Cables and Metal Cast Company were entirely two different and independent concerns. In the former the appellant was the proprietor and in the latter, which was a partnership concern he was the managing partner. The Director of Industries, Orissa allotted half of the unit B type building to Kalinga Cables and another half of the same building to Metal Cast Company by two separate letterExe. C and D, and as such the two concerns were accidentally in the same building only due to the want of separate and suitable accommodation. It was therefore contended that this prosecution was misconceived as the total number of eleven workers in two separate and independent concerns were taken into consideration as working in one factory which was non-existent either in fact or in name.
4. I find from Exs. C and D that the Director of Industries Orissa allotted half of the unit B typebuilding in the Industrial Estate cuttack 3. to Kalinga Cables, c/o the petitioner for a workshop for manufacturing nonferrous wire and the other half of the same building was allotted to Metal cast. Company as such for a workshop for manufacturing brass and aluminiumfitting Thus these two workshops were meant for and concerned with the manufacturing of two different types ofartless. The certificate of registration (Ex. B), issued by the Sales Tex Officer, Cuttack II Circle indicates thatKalinga Cables (Private), Ltd. Company inserted later in 1964 in the Industrial Estate, had a separate entity of its own.
5. By Ex. A. dated 29 Jane 1963, the petitioner informed the Chief Inspector of Factories that Kalinga cables andMetal Cast Company though housed in the same premises, were two different concerns and he was the proprietor of the farmer and only a managing partner of the latter and that on 6 June 1963, when the Inspector visited the place it was only the Kalinga Cables which was functioning and the Metal Cast Company, which had not started working by then, had employed three parsons temporarily only for that day to try a place of work for that concern. There is nothing to show if P. W 1 or anybody else of the Department of Industries took pare to enquire into the correctness or otherwise of all that was stated in Ex. A. No efforts were ever made by P. W. 1 to seize and/or inspect the muster-roll or the other relevant registers of theabove named workshops to satisfy himself and to prove the necessary details about the workshops inspected by him.
6. In Exs. 1 and 2. P. W. 1 mentioned the names of the workers who ware found working at the relevant times of his inspection. But in Ex. 1 against two of the eight workers named therein it is noted ' second shift.' NoSatisfactory explanation could be given as to how the names of two workers in the evening shift mentioned in Ex. 2, drawn up at 7 p m. could find place in the report, Ex. 1, stated to have been drawn up by F. W. 1 at 9 a.m. soon after his inspection of the morning shift on the same day.
7. It is clear from the discussion made above that Kailnga Cables and Metal cast Company, were two independent and distinct concerns for manufacturing two types of articles and that a factory of the name and title Kalinga Cables andMetal cast Company did not in fact exist at the premises inspected by F.W. 1 on 6 Jane 1963. As such P.W. 1 was absolutely wrong in considering the total number of workers of two such concerns as working in one factory, and that too in a factory which was not in existence either in name or in fact. Thus the prosecution is misconceived and vitiated, being initiated and based on such incorrect consideration and wrong facts. On this finding, and on the discussions made above on the other aspects of the case, I hold that the conviction and sentence of the petitioner cannot bemaintained.
8. In the result, therefore, the conviction and sentence of the petitioner are set aside. The revision is accordingly allowed.